Rehnquist and State Courts: Federalism Revisited

AuthorSue Davis
Published date01 September 1992
Date01 September 1992
Subject MatterArticles
University of Delaware
as decision-making of the Burger Court’s most conser-
~/ ~/ vative member based on a coherent judicial philosophy?
W V Or were his decisions instead, merely result-oriented attempts
to achieve the goals of the justice’s own conservative political agenda?
Injustice Rehnquist and the Constitution ( 1989) I argued, on the basis
of extensive analysis of his opinions, that the justice’s decision-making
was based on the interaction between a judicial philosophy with legal
positivism at its core and particular ordering of judicial values. The
language of his opinions indicated that he placed a preeminent value
on federalism, assigned a subordinate value to private property, and
relegated individual rights to the bottom of his hierarchy of values.
That particular ordering of values in conjunction with the three com-
ponents of his judicial philosophy-the democratic model, moral rela-
tivism, and his approach to constitutional interpretation - seemed to
render his decision-making coherent and comprehensible as principled
rather than result-oriented.
In the present paper I seek to shed further light on the nature of
Rehnquist’s decision-making by analyzing his voting behavior. The
question I address is whether he actually votes to support the federal-
ism that he so strongly endorses in his opinions. Does he consistently
support state autonomy? Or, is the value that he places on state auton-
omy superseded by a commitment to conservative results? Has he
used the rhetoric of federalism to obscure his conservative agenda?
If his decision-making was based on the interaction between his
ordering of values and three-part judicial philosophy, rather than a
conservative political agenda-when federalism came into conflict with
a conservative result federalism would, nevertheless, prevail. Such a
situation would arise if a state used its power to protect individual
rights. If Rehnquist placed federalism at the top of his hierarchy of
Received: August 12, 1991
Accepted for Publication: November 11, 1991

values he would support the authority of the state regardless of whether
it led to a liberal or a conservative result.
If federalism
truly occupies the preeminent position that Rehnquist’s
opinions suggest, when a state court of last resort overturns a criminal
conviction and the state appeals that decision to the United States
Supreme Court Rehnquist should vote to affirm the decision of the
state court. His vote to affirm a decision of a state court would be
based on his commitment to state autonomy - the idea that the state
should be free to make its own decisions regarding criminal justice
without interference from the federal judiciary. What institution could
be better qualified to assess the actions of the state legislature, execu-
tive officials, police, and local trial courts than the state’s own appel-
late judiciary?
A number of Rehnquist’s votes, however, in cases involving the
rights of the accused and the rights of prisoners suggest that his con-
servative agenda is more important than his commitment to federal-
ism. For example, he dissented when the Supreme Court affirmed a
decision of the Delaware Supreme Court holding that random stops of
automobiles without probable cause violated the Fourth Amendment
(Delaware v. Prouse, 440 U.S. 648 [1979]). He dissented again when the
Supreme Court agreed with the Florida Court of Appeal that deten-
tion of an airline passenger in a small room in an airport was illegal.
In that case he condemned the plurality for losing sight of the lan-
guage of the Fourth Amendment and,
... betray[ing] a...

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